Her Majesty's chargé d'affaires was directed to furnish Mr. Nugent with instructions on the latter point founded upon those addressed to him on the 17th of February, 1848. These instructions were substantially the same as those given to Mr. Vice-Consul Dale, (vide ante.)

PORTUGAL.

"The Earl of Aberdeen to Lord Howard de Walden.

"FOREIGN OFFICE, June 10, 1843.

"MY LORD: I have received your lordship's dispatch No. 111, of the 25th of May, stating that you had informed the Portuguese minister for foreign affairs that Her Majesty's government cannot for an instant admit the right claimed by the Portuguese government to consider as Portuguese subjects all persons born in Portugal, notwithstanding that they may be the issue of foreigners residing in that country.

"I think it necessary for your information to put you in possession of the opinion of the Queen's advocate-general upon several cases which have arisen in foreign countries, and in which the right referred to in your dispatch has been questioned.

“The substance of that opinion is, that although by the statute law of this country all children born out of the allegiance of the King, whose fathers, or grandfathers by the father's side, were natural-born subjects, are themselves entitled to enjoy British rights and privileges while they are within British territory, yet the effect of British statute law cannot extend so far as to take away from the government of the country in which those persons may have been born, the right to claim them as natural-born subjects, at least so long as they remain in that country.

"By the common law of England, all persons born within the King's allegiance, whether the children of British subjects or of foreigners, are deemed to be naturalborn subjects of the Crown of England; and if the law of any foreign state upon this point be the same as the English law, and if such foreign state places persons born within its territory upon the same footing as its own subjects or citizens, the government of that state has the right to exact the service of a subject from such persons, even if they may have been the children of foreigners, at least whilst such children remain in the country of their birth.

"It may be necessary that I should add that the children or grandchildren by the father's side, of natural born-British subjects, born in any other country than Portugal, are entitled to be protected by you, in Portugal, as natural-born subjects of the Crown of Great Britain; but the children of British fathers born in Portugal cannot be protected by you against the operation of the laws affecting the subjects of Portugal, unless the laws of that country withhold from the child of a foreigner the rights of a Portuguese subject."

PRUSSIA.

In reply to inquiries from Lord Bloomfield,' Lord Clarendon furnished him with the following instructions in 1855:

"1st. That a woman, a British-born subject, who has married a foreigner, puts on the status of her husband, and during the continuance of that coverture is not entitled to claim the protection of Her Majesty's legations abroad.

"2d. The same woman, on becoming a widow, is entitled to re-assume the character of a natural-born British subject; but her children by her alien husband, if born abroad, follow the nationality of their father, except that by virtue of the 3d section of the 7 & 8 Vict., cap. 66, they are made capable of taking any estate, real or personal, by devise or purchase or inheritance in England.

3d. As already stated, the mother, whilst under coverture, follows the condition of her husband, and is an alien; but the children, as well during as after the coverture, are entitled to the privileges conferred by the 3d section of the 7 & 8 Vict., cap. 66. "4th. During coverture by an alien husband the mother cannot demand a British passport. When 'discouverte' she may demand one. The children, however, are aliens and cannot demand passports as British subjects either during or after coverture."

In 1862, Mr. Crossthwaite, Her Majesty's consul at Cologne, requested to be informed whether, he having been naturalized as a Prussian subject, his sons were liable to the Prussian conscription.

It was decided that the sons of a naturalized Prussian subject (owing allegiance to

1To Lord Bloomfield, No. 249, August 11, 1865. Law officers: November 5, 1862.

Her Majesty) who are between the ages of 17 and 25, and are resident in Prussia would be compellable to serve in the Prussian army.

In 1865 it was decided that a M. Renkewitz, a person born in the British colony of Tobago, of a Saxon father and a Danish mother, and who had not resided in British territory since he was seven years of age, might properly receive a British passport from the Berlin embassy.

In October, 1867, the Prussian chargé d'affaires, with a view to the controversy be tween the Prussian and United States Governments, made an inquiry as to the liability to serve in Her Majesty's army and navy of British subjects who, having emigrated to a foreign country and become naturalized citizens of that country, subsequently return to their native land.

Count Bernstorff was informed "that no practice has prevailed in England since the peace of 1815, which has any bearing on the question of the treatment in Prussia of these subjects of the King of Prussia, liable to military service, who, after they have emigrated to a foreign country, and been naturalized there, come back again to Prussia, inasmuch as the practice in England has always been, both before and since the peace of 1815, to recruit the royal army by voluntary enlistment.

"On the other hand, the militia of the counties which used to be called out by ballot has ceased to be so called out since 1829, and on the last occasion when the militia was embodied, during the Russian war in 1854, the quota of each regiment was furnished by volunteers. There has thus been no opportunity for a tacit practice to grow up either in regard to the army or the militia, under which any privilege of exemption from the liability to military service should become established in Great Britain in favor of those subjects of the Queen who, after they have emigrated and been naturalized abroad, have returned to Great Britain.

"With regard to the royal navy, the same observations apply, as the practice of impressment has been allowed to fall into desuetude, and the royal navy has been for some time recruited by voluntary enrollment."

RUSSIA.

In 1857 Madame von Essen applied to Lord Wodehonse,3 at St. Petersburgh, for a British passport, to enable her to be recognized as a British subject by the Russian authorities, she being the widow of a Prussian who had been naturalized in Russia.

Lord Wodehouse was instructed "to grant her a passport if she can show that she was a natural-born Englishwoman, and that she forfeited upon the death of her husband the rights she acquired in Russia as the wife of a naturalized Prussian subject; but if she did not forfeit those Russian rights, you will inform Madame von Essen that she cannot under such circumstances be provided with a British passport, more especially as she appears to have no intention of leaving Russia."

The Queen's advocate remarked, in regard to this case, that there was no law as to the right of a British-born subject to a passport, and that it would be very inexpedient to lay down any inflexible rule in such matters. The primary intention and use of a passport was for traveling purposes, and it was for the secretary of state to give such directions from time to time as he might think fit as to the grant of passports in special cases, having regard to the conditions as to domicile and residence in a foreign country, under which such applications were made.

Shortly afterwards Consul-General Mansfield inquired whether a Polish lady mar ried to an Englishman could legally be entered in her husband's passeport de séjour as a British subject. He was told that during marriage she became entitled to the status and civil rights of her husband, and consequently to the protection of the British government as a British subject.

In 1862 a question arose as to the status of British Jews in Russia.

Her Majesty's embassador was instructed that, having regard to the language of the treaty between Great Britain and Russia of 1859, and to the facts stated with reference to the legal status of Russian Jews in their own country, Her Majesty's government would not be justified in claiming exemption for British Jews in Russia from the disabilities to which Russian Jews are there liable by law. The effect of the first and eleventh articles of the treaty was to place British subjects on the footing of Russian subjects before the law, each class being alike, and one not more than the other amenable to all general laws applicable in like cases. Russian subjects, being Jews, incurred certain disabilities, and the equality intended and provided by the treaty was not infringed by British subjects who are Jews, whilst residing there, also sharing the same disabilities. In 1865 the British factory at St. Petersburg wished to obtain a re

1 December 4, 1865. To Count Bernstorff: November 15, 1867. Lord Wodehouse, No. 12, January 3, 1857. Queen's Advocate: January 15 and 21, 1857. To Lord Wodehouse, No. 69; January 21 1557 *Consul-General Mansfield, No. 16; February 24, 1857. To Lord Napier, No. 105; May 15, 1962

vision of the sixth section of the Russian naturalization law relating to children born after their parents had adopted Russian allegiance, with reference especially to the fact that previously to 1862 no alien could carry on business in Russia without being naturalized, and that the new law of 1864 made no provision for the denaturalization of persons who had assumed Russian nationality before it was passed.

Sir A. Buchanan' was instructed to assist the factory as far as he could.

At the same time he was warned that it was impossible to press upon the Russian government the law of England as a complete reason for the desired concession.

"The present law of England would allow a Russian merchant to carry on his business in Great Britain without being naturalized, and so far the doctrine of reciprocity might be made available: but, on the other hand, the law of England considered that allegiance, whether acquired by birth or by naturalization, is indelible, except, perhaps, in the case of a conflict of duty between the obligations of the naturalized foreigner to the state to which he originally belonged and Great Britain.

"A Russian could exercise wholesale and retail trade in England on the same footing as a British subject, with the exception that he could not lease land or house for a longer term than twenty-one years without being naturalized. A Russian could not,3 according to the theory of the law, put off the allegiance acquired by naturalization, though practically he would do so if he returned to his own country, except, perhaps, in a case of war between Russia and England."

In March, 1867, Mr. George Wolff applied to Sir A. Buchanan for a British passport. Mr. Wolff was born in England of a Hanoverian father and English mother, had resided in England until he was eleven years of age, and had never claimed Hanoverian nationality.

Under these circumstances, Sir A. Buchanan was told that he might give notice to the Russian authorities of Mr. Wolff's name being withdrawn from the family passport, and give him a separate passport as a British subject.

SPAIN.

Her Majesty's Consul at Cadiz5 having requested instructions in 1841 as to the claims. of the sons of British subjects born in Spain to exemption from the conscription, he was informed that as British law considered all persons born in Great Britain to be British subjects, Her Majesty's government could not urge the claims of persons born in Spain to British protection as against the laws of that country.

Lord Aberdeen, however, pointed out that by the Spanish constitution of 1837 it was declared that all persons born in Spain were Spaniards, but when that law was passed it was interpreted by the Spanish government to mean that such persons have the right of being admitted to the privileges of Spanish subjects at their option, and that if it was thereby meant that the children of aliens born in Spain were aliens unless they declared their option of becoming Spaniards, it might be contended that the sons of British parents so situated, who had not made such a declaration, remained British subjects, and, as such, exempt from conscription.

By article 24 of the Royal Decree of 17th November, 1852, it was provided that persons domiciled or traveling in Spain, as well as their sons, who had not chosen Spanish nationality, should be exempt from military service, with the exception of those whose parents were born in Spanish territory.

In 1856 a question arose as to the interpretation of this law, and certain persons, grandsons of native British subjects, claimed exemption in the face of it.

The case was referred to Lord Clarendon, who decided that the claim was inadmissible.

In 1861, however, it appeared that Her Majesty's consuls in Spain still continued to claim to protect the grandsons of British subjects from military service, and Lord Russell then gave instructions that they should desist from doing so.

Further correspondence passed between Sir J. Crampton and Lord Russell on this subject in 1862, and the following dispatch was addressed to Sir J. Crampton (July 9, 1862 ):

"I have to state to you that with regard to the general question I have nothing to add to the instructions conveyed to you in my dispatch No. 164, of the 17th December last, to which her Majesty's government adhere.

"With respect to the particular cases of Lieutenant Arguimban and his son Mr. Joseph Arguimban, and to any other cases which may come under the same category,

Sir A. Buchanan, No. 21. Queen's Advocate; January 31, 1865. See, however, previously as to British naturalization, the certificates of which, as at present granted, are canceled by absence from England without license beyond a certain specified time. Sir A. Buchanan, No. 80; March 12, 1867. Consul Brackenbury, Nos, 6, 9, 9, 11, 1841. To Consul Brackenbury, No. 4; November 5, 1841. Lord Howden, No. 96; March 25, 1856. To Sir J. Crampton; Dec. 11, 1861. Sir J. Crampton, No. 197; May 2, 1862. To Sir J. Crampton, No. 139; July 9, 1862. Law officers; July 7, 1862.

I am advised that they should be determined by the domicile of the parents at the time of the birth of the children within the territories of the Crown of Spain. If at the time of the birth of Lieutenant Arguimban, his father was not only a natural-born British subject, but legally domiciled in the British dominions, I am of opinion that Lieutenant Arguimban himself was at the time of his birth a British subject, owing permanent allegiance to the British Crown, and entitled to British protection. If, on the contrary, his father was then domiciled in the dominions of the Spanish Crown, he became a Spanish subject, and is not entitled to claim British protection against any obligations resulting from his Spanish allegiance, although by an English statute he may be also entitled to the privileges of a natural-born British subject in Great Britain.

"The same observations apply to the case of Mr. Joseph Arguimban, whose position is likewise dependent on the allegiance and domicile of his father at the time of his birth.

"The fact of Lieutenant Arguimban and one of his sons being officers in the royal navy tends prima facie to show that the domicile of Lieutenant Arguimban, if originally in England, did not afterwards cease to be so; but even this point would not be conclusive if that gentleman has resided for a long time in the Spanish dominions, and I am advised that no length of service in the army or nayy of Great Britain would be material for the purpose of the present question if the allegiance and domicile of the person engaged in such service were originally Spanish.

"I should add that, even in the case of persons owing permanent allegiance to the British Crown, but domiciled and resident in Spain, the claim to exemption from military service in Spain cannot justly be extended on their behalf to any services required for the legitimate purposes of internal defense only, and which do not involve any act at variance with the duties of their British allegiance."

SWITZERLAND.

Lord Palmerston to M. Drouey, president of the Swiss Confederation.

"OCTOBER 16, 1859.

"The undersigned has the honor to acknowledge the receipt of the note addressed to him in the name of the Federal Council in Switzerland by M. Drouey, president of the Confederation, requesting to be made acquainted with the provisions of the English law as regards the cases in which foreigners lose their rights of nationality.

"In reply, the undersigned has the honor to inform M. Drouey that he is not aware of any case in which a British-born subject can lose his right of nationality unless he should be deprived of it by an act of Parliament.

"It is well established that a natural-born British subject cannot put off his allegiance to the British Crown by any act of his own, not even by swearing allegiance to a foreign power; and though it is not illegal for a British subject to contract engage ments with a foreign power with the license of the British Crown, yet such engage ments do not affect his national status according to the English law, and the license so given may be revoked at any moment.

But though a British subject cannot get rid of his national character, he may so misconduct himself, either by committing piracy, or in other ways, as to forfeit all claim to the protection of the British government."

In 1863 the Swiss government claimed to include in the conscription, at Geneva, two brothers, named Fournier, born in England, but whose father had been naturalized subsequently to their birth as a citizen of Geneva.

As the young men were both of full age, and had done nothing to forfeit their British character, Her Majesty's minister at Berne was informed that they came within the meaning of the term "British subjects" in the sixth article of the treaty of 1855, and, as such, were exempt from Swiss military service.

In 1865 a question arose whether an English company, (the European Central Railway Company,) whose direction and agent was located in the canton of Tessin, was entitled to the support of the British legation. 3

Admiral Harris was instructed "that this English company has not forfeited its right to the protection of the British legation, because in the act of concession the technical domicile of the company (‘la direction technique du chemin de fer') is to be considered as being in the canton where the board of administration of the company is situated. The distinction between different kinds of domicile is familiar to all jurists. The domicile which incorporates a foreign citizen into the state in which he is

1 The tenor of this dispatch seems inconsistent with the doctrine previously held by the British gov ernment, as it makes the nationality of the son to depend on the domicile of his father instead of the the place of his own birth. It is to be presumed that the instruction was framed with reference to the peculiar law and usage of Spain, and was not intended to lay down any general principle applicable 10 other countries. To Admiral Harris, No. 16, April 22, 1863. To Admiral Harris, No. 2, November 20,

1865.

resident is wholly distinct in its character and consequences from the domicile which is assigned by the state to a foreign subject with relation to certain legal acts or liabilities. Such a domicile is for the purpose of founding jurisdiction in the event of legal proceedings being taken, either by him or against him in the country in which he is resident. The domicile specified in the concession for the company is of this nature, and falls under this category; but it does not affect the right of the company to the intervention of its government for the purpose of preventing an act of injustice being done to it by the foreign government. The intervention, however, of the British legation in Switzerland should be strictly confined to such a case, and should not attempt to interfere with the ordinary course of the municipal law in its operation upon the rights and liabilities of the company."

In 1866 Mr. J. G. Roch protested against being called upon for military service in Switzerland as a Genevese.1

Mr. Roch's grandfather was a Genevese by birth, having been born in a territory ceded by Sardinia to Geneva in 1816 by a treaty, one of the conditions of which was that those so born should, being Christians, be considered as Genevese. By the law of that canton the national character is inalienable, and extends to the grandchild.

As Mr. Roch lived and was domiciled at Geneva, Admiral Harris was informed that the claim to exemption could not be put-the English law on the same subject being duly borne in mind-upon the high ground of strict right. The claim could only be preferred upon the lower ground of usage and convenience.

TUNIS.

Lord Palmerston to Sir T. Read.

"JANUARY 16, 1840.

"SIR: Mr. Ancram, in his dispatch No. 14, of the 2d of June, 1838, reported the case of a young Maltese girl, Grazia Abela, the wife of a Maltese, who had been persuaded to embrace the Mahomedan religion, but who afterward desired to recant. Mr. Ancram, it appears, made thereupon an application to the bey that the girl should be restored to her husband, but the bey refused to restore her. Since that time I have heard nothing further from Mr. Ancram or from yourself on this subject; and I would hope that the bey, on further reflection, may have been induced to give up the girl. But if that should not have been the case, I have to instruct you to state, by a written note to the bey, that all the subjects of Her Majesty are free to change their re ligion, if they think fit to do so, and the British government never interferes with the conscience of British subjects; but that every person who is born a subject of the British Crown must, by the law of England, continue, during life, to owe allegiance to the sovereign of Great Britain; and, on the other hand, every such person is entitled, during life, to the protection of the British Crown.

"The woman in question, having been born in Malta, is a British subject; and, though she is at liberty to embrace the Mahomedan religion if she shall think fit to do so, she cannot thereby cease to be a British subject, and she is as much entitled to British protection as if she had remained a Christian. The law of Tunis may be different; but the British government has nothing to do with that law, and Great Britain never can permit the laws of any foreign state to interfere with the indissoluble connection which binds a British-born subject to the British Crown.

"Moreover, marriage is, by the law of England, a tie which can only be dissolved by an act of the British legislature, and Her Majesty's government never can permit any foreign government to assume that a marriage legally contracted between two British subjects can be dissolved by the circumstance that one of these parties has changed their religion.

"Her Majesty's government, therefore, expect that this Maltese woman shall be placed under your protection, in order that she may have an opportunity of freely choosing whether she will return to her husband and her country, or remain where she is.

"I am, &c.,

"PALMERSTON."

In 1865 Mr. Wood reported that he had sent to Malta a Maltese family consisting of a widow and minor children, who had been induced by distress to embrace the Mahomedan religion.

As the children of a Maltese father, during their minority, remained British subjects, and it was assumed that the application made for their removal to Malta had been at the instance of their next relation or friend, Mr. Wood's proceedings were approved.

3

Mr. J. G. Roch, March 16, 1866. To Admiral Harris, No. 21, March 29, 1866; Queen's advocate, April 14, 1866; Queen's advocate, May 8, 1866; Queen's advocate, May 21, 1866. Queen's advocate, January 13, 1865.